AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

RECORD OF PROCEEDINGS 

SEP  2  1 t998 

IN THE MATTER OF: 

DOCKET NUMBER:  97-03732  . :. 
COUNSEL:  None 

HEARING DESIRED:  NO 

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APPLICANT REOUESTS THAT: 

His &tired  rank to lieutenant colonel be restored. 

APPLICANT CONTENDS THAT: 

He was selected for lieutenant colonel below-the-zone in December 
1985,  however, he did not pin on his new rank until April 1987. 
At  that time, an officer was  required to serve three years in- 
grade  in  order  to  retire  in-grade  unless  (as he  was  led  to 
believe) a waiver was granted by the President.  His family and 
he reluctantly made the decision to retire in December 1989 after 
20 years of active duty for a variety of reasons that were best 
for them as a family.  He felt he was a good candidate to receive 
a waiver to retire in-grade.  He was only asking to waive about 
four  months  time-in-grade  and  the  quality  of  his  Air  Force 
service warranted special consideration.  He sent his request for 
a waiver through channels.  The request never made it above staff 
level at  the Department of  the Air  Force and  was denied  so he 
accepted  their  decision  and  retired  in  the  grade  of  major. 
Denial of his request was unjust.  He doesn't  believe his request 
to  retire  in-grade was  reviewed  at  the  proper  level prior  to 
disapproval.  The short period of time required for a waiver was 
insignificant given the totality of his career.  He had to wait 
an inordinate amount of  time to pin on lieutenant colonel from 
the time he was selected thus starting the three year clock late. 
It  is  his  understanding  that  subsequent  to  his  retirement, 
officers were  allowed  to  retire  in-grade with  less  than  three 
years which means  the  original  rule was  not  written  in stone. 
His entire career was filled with a variety of  flying and staff 
jobs at the squadron, wing and command level at which he worked 
very hard and achieved excellent results.  He risked his life for 
his country and gave the Air Force 20 years of solid service - -  
he feels his request is reasonable and justified. 

Applicant's complete submission is attached at Exhibit A. 

97- 03732 

STATEMENT OF FACTS: 

Applicant was selected for promotion to the grade of  lieutenant 
colonel  below-the-zone  in  D cember  1985;  however,  he  did  not 
assume  the  grade  until  1 M& 
1 9 8 7   incurring  a  requirement to 
serve three years in-grade in order to retire in-grade. 
On  7  April  1989,  applicant  requested  retirement  effective 
1 December 1 9 8 9 .  
On  24  April  1989,  applicant  applied  for a waiver  to  the  three 
year time-in-grade requirement. 
On 6  June 1 9 8 9 ,   the Secretary of the Air Force Personnel Council 
(SAFPC) accepted  the  applicant's  application  for  retirement  in 
the grade of major, effective 1 December 1 9 8 9 .  
On  30  November  1 9 8 9 ,   applicant  retired  in  the  grade  of  major 
after serving 2 0   years and 26  days of active service. 

AIR FORCE EVALUATION: 

The  Retirements  Branch,  Directorate  of  Personnel  Program 
Management, AFPC/DPPRR, reviewed  the application and  states the 
applicant was correctly retired  in the grade of  major.  He did 
not meet  the time-in-grade requirements of  law to retire in the 
highest  grade  held  on  active  duty  (lieutenant  colonel)  and, 
therefore, retired in the next lower grade in which he served on 
active duty satisfactorily, as determined by the Secretary of the 
Air Force, for not  less than six months.  The applicant has not 
provided any evidence that an injustice or error in his records 
exists or occurred.  Rather, he advises that he believes he was a 
good candidate to receive a waiver to retire in-grade.  The only 
evidence to support his request for a waiver to the time-in-grade 
requirement  of  law  for  'cases  involving  extreme  hardship  or 
exceptional or unusual circumstances,  was Ais wish to accept a 
civilian job  that  might  not  have  been  available  if  he  delayed 
past  the  date  of  his  requested  retirement date.  Additionally, 
they  cannot  find  any  evidence  of  documentation  submitted  to 
substantiate  that  portion  of  his  request. 
A1 t hough  they 
understand the member's  concerns, they are not  certain that his 
request  involved  a  case  of  extreme  hardship  or  exceptional or 
unusual  circumstance.  However,  his  request  was  processed  in 
accordance with the laws and policies and the SAFPC, on behalf of 
the Secretary, considered his request and approved his retirement 
in the grade of major.  As a matter of note, the provision of, law 
that  allows  the  "President"  to  approve  a  waiver  for  extreme 
hardship or exceptional or unusual circumstances does not  allow 
approval authority to be delegated to any position lower than the 
President;  it  does  not  prohibit,  however,  disapproval  by 

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97 - 0 3 7 3 2  

authorized  o ficials prior  to  Presiden ial.  No  injusti es  or 
irregularities  occurred  in  the  processing  of  applicant's 
retirement request and all provisions of law have been correctly 
met.  Therefore, they recommend denial of applicant's request. 
. ~. 

A  complete  copy  of  the  Air  Force  evaluation  is  attached  at 
Exhibit C. 

APPLICANT'S REVIEW OF A IR FORCE EVALUATION: 

The applicant reviewed the Air Force evaluation and  states that 
he does wish to submit the following as a special circumstance. 
During his  absence from the Air  Force from about April  1979  to 
September 1980,  he was employed as a pilot  for United Airlines. 
He was furloughed from United Airlines in 1980  and successfully 
applied  to  return to  the  Air  Force.  When  he  was  recalled  to 
United Airlines in late 1984, he wrote and told them that he had 
chosen to  remain in the Air  Force.  He  received a  letter back 
from United Airlines informing him  that he had to return within 
five  years  (by late  1989)  to  reclaim  his  position  at  United 
Airlines.  When he was selected for lieutenant colonel below-the- 
zone he rated his prospects for increased rank as fairly good and 
felt confident about his selection for colonel and perhaps later 
on,  general  officer.  At  that  point  he  felt  good  about  his 
decision to  remain  in  the Air  Force  and  leave United  Airlines 
behind.  However, around 1988, his commander informed him that he 
had  not  been  selected  as  a  candidate  for  command  of  an 
operational squadron  -  a  key  indicator of  the  possibility  for 
future promotions.  It appeared to him at this point that he had 
attained the highest rank he would ever achieve in the Air Force. 
This would mean that he would face the mandatory retirement point 
just  as  his  children were  about  to  enter  college.  It  seemed 
clear to him that the best move for his family would be to retire 
from  the  Air  Force  and  return  to  his  guaranteed  position  at 
United Airlines.  He wishes to reiterate a point  that the  time 
from  his  notification  of  selection  to  lieutenant  colonel  was 
extraordinarily  long. 
Had  a  normal  amount  of  time  elapsed 
between notification of  selection and actual assumption of  rank 
occurred, he would have been in-grade well over three years and 
there  would  be  no  reason  for  a  request  for  correction. 
Additionally,  circumstances have  been  created  at  certain times 
where two years of service are suitable to retire in-grade. 

Applicant's complete response is attached at Exhibit E. 

THE BOARD CONCLUDES THAT: 
1.  The  applicant  has  exhausted  all  remedies  provided  by 
existing law or regulations. 

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97-03732 

2.  The application was not  timely filed; however, it  is in the 
interest of justice to excuse the failure to timely file. 

3.  Insufficient  relevant  evidence  has  been  presented  to 
demonstrate the  existence  of  probable  error  or  injustice..,. We 
took notice of the applicant's complete submission in judging the 
merits  of  the  case;  however,  we  agree  with  the  opinion  and 
recommendation of the Air Force and adopt their rationale as the 
basis  for  our  conclusion  that  the  applicant  has  not  been  the 
victim  of  an  error  or  injustice.  It  is  unfortunate  that  the 
applicant could not have delayed his retirement for an additional 
five  months  in  order  to  retire  in  the  grade  of  lieutenant 
colonel.  However, his reasons for retiring does not fall in the 
category  of  extreme  hardship  or  exception  or  unusual 
circumstances to be waived under Section 1370,  Title 10, United 
States Code, paragraph  (a) (2) (A).  Therefore, in the absence of 
evidence  to  the  contrary,  we  find  no  compelling  basis  to 
recommend granting the relief sought in this application. 

THE BOARD DETERMINES THAT: 

The  applicant  be  notified  that  the  evidence  presented  did  not 
demonstrate  the  existence  of  probable  material  error  or 
injustice; that  the  application  was  denied  without  a personal 
appearance; and  that  the  application will  only be  reconsidered 
upon  the  submission of  newly  discovered  relevant  evidence  not 
considered with this application. 

The following members of the Board considered this application in 
Executive Session on 18 August  1998, under the provisions of AFI 
36-2603: 

Mr. Henry C. Saunders, Panel Chair 
Mr. Dana J. Gilmour, Member 
Ms. Ann L. Heidig, Member 
Ms. Gloria J. Williams, Examiner  (without vote) 

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97-03732 

The following documentary evidence was considered: 

Exhibit A. DD Form 149, dated 12 December 1997, w/atchs. 
Exhibit B. Applicant's Master  Personnel Records. 
Exhibit  C. Letter, AFPC/DPPRR,  dated 30 January 1998,  . ,. 
Exhibit D. Letter, AFBCMR, dated 9 February 1998. 
Exhibit E. Applicant's  Response, date  20 February 1998. 

w/atchs. 

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DEPARTMENT OF THE AIR  FORCE 

HEADQUARTERS AIR  FORCE PERSONNEL CENTER 

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8 0  JAN Oa] 

RANDOLPH  AIR  FORCE BASE TEXAS 

MEiMORANDUM FOR AFBCMR 
FROM HQ AFPC/DPPRR 

550 C Street West, Suite 11 
Randolph AFB TX 78150-4713 

SUBJECT:  Application for Correction of Military Records 

Reauested Action.  Restore his retired rank to Lieutenant Colonel (05). 

Bask for Request.  Applicant was selected for Lieutenant Colonel below the zone 
in December 1985; however, he did not assume the grade until 1 May 1987. At that time, 
an officer was required to serve three years in grade in order to retire in grade unless (as 
applicant was led to believe) a waiver was granted by the President.  Applicant reluctantly 
made the decision to retire in December 1989 after 20 years of active duty for a variety of 
reasons that were best for his family.  Applicant believed he was a good candidate to 
receive a waiver to retire in grade.  He attests that he was only asking to waive about four 
months time in grade and the quality of his Air Force service warranted special 
consideration.  Applicant submitted a request for waiver and processed it through 
channels.  The requests never made it above staff level at the Department of the Air Force 
and were denied so he accepted the decision and agreed to retire in the grade of Major. 

Discussion. 

a.  Section 1370, Title 10, United States Code (UCS),  paragraph (a)(2)(A) 
states (Atch  1):  “In order to be eligible for voluntary retirement under any provision of 
this title in a grade above major or lieutenant commander, a commissioned officer of the 
Army, Navy, Air Force, or Marine Corps must have served on active duty in that grade for 
not less than three years, except that the Secretary of Defense may authorize the Secretary 
of a military department to reduce such period to a period not less than two years in the 
case of retirements effective during the nine-year period beginning on October 1, 1990.” 
b. Paragraph (a)(2)(B) of that same law also provides that the President 

may waive paragraph (a)(2)(A) in individual cases involving extreme hardship or 
exceptional or unusual circumstances. The authority of the President under the preceding 
sentence may not be delegated (Atch 2). 

c. Section 1370, Title 10, U.S.C., paragraph (b) states (Atch 3):  “An 
officer whose length of service in the highest grade he held while on active duty does not 
meet the service in grade requirements sp&ified in paragraph (a)  shall be retired in the 
next lower grade in which he served on active duty satisfactorily, as determined by the 
Secretary of the military department concerned for not less than six months.” 

. 

d.  Applicant voluntarily applied for retirement on 7 Apr 89 to be effective 

1 Dec 89 (Atch 4).  His application included a request to waive Section 1370, Title 10, 
U.S.C., which requires officers in the grade above major or lieutenant commander, to 
serve on active duty in that grade for not less than three years.  Applicant indicated he 
filly understood the Public Law requirement to remain on active duty through 1 M a y  
1990 to retire in the grade of lieutenant colonel.  He also indicated that he wanted to retire 
in the grade of major on 1 Dec 89, if his request to retire as a lieutenant colonel on that 
date was denied. 

e.  By Secretad memorandum dated 6 Jun 89 (Atch 9, the Secretary of 

the Air Force Personnel Council accepted the application submitted on 7 Apr 89, by 
applicant for retirement in the grade of major, effective December 1, 1989. 

Recommendation:  Denial. 

a.  The applicant was correctly retired in the grade of Major.  He did not 
meet the time-in-grade requirements of law to retire in the highest grade held on active 
duty (Lieutenant Colonel) and, therefore, retired in the next lower grade in which he 
served on active duty satisfactorily, as determined by the Secretary of the Air Force, for 
not less than six months. 

b. , The applicant has not provided any evidence that an injustice or error in 
his records exists or occurred. Rather, he advises that he believes he was a good 
candidate to receive a waiver to retire in grade.  The only evidence to support his request 
for a waiver to the time-in-grade requirement of law for “cases involving extreme hardship 
or exceptional or unusual circumstances” was his wish to accept a civilian job that might 
not have been available if he delayed past the date of his requested retirement date. 
(Additionally, we cannot find any evidence of documentation submitted to substantiate 
that portion of his request.)  Although we understand the member’s concerns, we are not 
certain that his request involved a case of extreme hardship or exceptional or unusual 
circumstance.  However, his request was processed in accordance with the laws and 
policies and the SAF Personnel Council, on behalf of the Secretary, considered his request 
(As a matter of note, the provision of 
and approved his retirement in the grade ofM‘or. 
law that allows the “President” to approve et waiver for extreme hardship or exceptional or 
unusual circumstances does not allow approval authority to be delegated to any position 
lower than the President; it does not prohibit, however, disapproval by authorized officials 
prior to Presidential.) No injustices or irregularities occurred in the processing of this 
retirement request and all provisions of law have been correctly met. 

1/ detirernents Branch 

Directorate of Personnel Program Management 

Attachments 
1.  Section 1370, Title 10, U.S.C. 
2.  Section 1370, Title 10, U.S.C., paragraph (a)(2)(A) 
3.  Section 1370, Title 10, U.S.C., paragraph (b) 
4.  AFForm 1160 
5.  Secretarial memorandum, 6 Jun 89 

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p a  

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FOR NON-REGUL  .R 

,CH PTER 69RETJRED GRADE 

i p"y  for nonregular service 
it e  (beginning with  section 

3005.) 
transferred to 88 12731 to 

491 

d l h . .  

' . 

{a) RULE FOR RETIREMENT IN HICHEST GRADE HELD  SATISFAC- 

Entitlement to eqmmlsion: commissioned officers advanced on retired list. 
Temporaty disability retired lists. 

Commiaabned ofiiwrs: general rule; e~ceptions. 
Grade on retirement For  h y s d  disability: members of armed forces. 
Higher grade for later p&Sical  dhbilitF retired officers . d e d  to active 

&c. 
1370. 
1371.  Warrant officers: general d e .  
1372. 
1373. 
[1374.  Re<&3.l 
1376. 
1376. 
8 1370. Commissioned officers: genera1 rule; exceptions 
Tomy.--(l) Unless entitled to a higher retired  grade under  Borne 
other provision  of  law,  a commissioned officer (other than a com- 
missioned warrant officer) of the Army, Navy, Air Force, or Marine 
Corps who  retires under- any provision of  law other .than .chapter 
61 or chapter  1223 of  this title shall, except as provided  in para- 
graph (2),  be retired in the highest grade in which he served on ac- 
tive duty satisfactorily, as determined by the Secretary of  the mili- 
tary de  artment concerned, for not less than sir months. 
(2)h) In order  to be eligible for  voluntary  retirement  under 
any provision of this title in a grade above major or lieutenant com- 
Navy, Air  Force,  or 
mander,  a  commissioned  officer of  the 
Marine  Corps must have. served on  active  uty  in  that grade  for 
not less than three years, except that the Secretary of Defense may 
authorize the Secretary of  8 mlitary department to reduce such pe- 
to "$ uring the nine-year period beginning on October 1, 1990. 
riod not less than two years in the case of  retirements 
lied 
effective 
(B) The President  may waive  subparagraph (AI in inhvidual 
cumstances.  T 5 e  authority  of  the  President  under  the  preceding 
cases  involvin  extreme  hardship  or  exceptional  or  unusual cir- 
sentence may not be delegated. 
(C) In the case of a grade below the grade of lieutenant  eneral 
or rice admiral, the number of members of one of the armef forces 
in that grade for whom a reduction is made during any fiscal year 
in  the  period  of  service-in-grade otherwise  required  under  this 
paragraph may not exceed the number equal to two percent of the 
authorized  activeduty stren  h for that fiscal year  for  officers of 
(3) A reserve or temporary officer who is notified that he will 
be released from active duty without his consent and thereafter re- 
quests  retirement  under  section 3911, 6323, or  8911 of  this title 
and is retired  pursuant  to that request is amaidered for purposes 
of this section, to have beensetired involuntarily. An officer retired 
pursuant  to section  Pl86(bX1)  of  this title  is  considered for pur- 
poses of this section to have been retired voluntarily. 
(11)  RETrREMENT  IN NEXT LoWER   GRADE.-^  officer  whose 
length of  service in the highest grade he held while on active duty 

that armed force in that gra 8 e 

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495 

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OFFICE OF THE A 5 5 4 5 T M  SeCRl3ARY 

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DEPARTMENT O F  THE AIR  FORCE 

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WASHINGTON  DC 20330-1000 

SUBJBcTs  Voluntary Ftetiranent  i n  Lower  Grade  - ACJ?ION ME3DRANDUM 

%he Secretary of the Air Force accepts the application submitted on 

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retirement i n  the grade of major, effective DecaTlber  1, 1989. 

ROBERTL.  03L 
Colonel,  USAF 
Acting Depty DirectOK 
SAF  ~ r s o n n e l  Council 

976 3.7 3 

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